The State and Federal Constitutions and their Effect in Massachusetts on the Question of State Aid to Private Higher Education.

Liebman, Lance

This report transmits the fruits of an inquiry into the constitutional constraints on the question of whether it is possible in Massachusetts to design programs to assist private higher education with public funds. The original focus of the inquiry was on the Massachusetts Constitution, especially its unique Amendment 46. Amendment 46 suggests public "order and superintendence" of institutions receiving state aid. It bars aid for denominational schools even if under public control and for all institutions that are not both publicly "owned" and under the exclusive control of public officers. Also, the Amendment bars aid to schools "wherein any denominational doctrine is inculcated." Thestudy showed, however, that Amendment 46 is, for a provision of law, relatively clear and relatively well understood. It is also one-third of the way to being amended in a way that would virtually affect the subjects under view. The study also showed that the First Amendment to the United States Constitution is likely to play a more important role in determining the permissibility of future Massachusetts programs than the amended Article 46. Therefore, the second part of this report is directed toward the First Amendment issues. (Author)